DZAAB v Minister for Immigration
[2012] FMCA 295
•13 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZAAB v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 295 |
| MIGRATION – Review of decision of Independent Merits Reviewer – procedural fairness – where reviewer suggested hearing evidence from applicant’s brother – where brother not brought to give evidence – whether process completed – where opportunity to make further submissions taken – whether procedurally unfair. |
| NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 Re Minister for Immigration and Multicultural Affairs: Ex parte Lam (2003) 214 CLR 1 |
| Applicant: | DZAAB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | DR RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 7 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 4 April 2012 |
| Date of Last Submission: | 4 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 13 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | J. Gibson |
| Solicitors for the Applicant: | Northern Territory Legal Aid Commission |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
DNG 7 of 2011
| DZAAB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| DR RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application for the review of a decision of an Independent Merits Reviewer[1] who found that the applicant, a young woman from Sri Lanka, should not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. The applicant had claimed to fear persecution should she return to Sri Lanka on the grounds of her Tamil ethnicity and the suspicion which the Sinhalese authorities might have that she had links to LTTE. The applicant had claimed that there was an air force base close to her home and one night some men from the air force base came to her home and wanted to question her on suspicion that she had some involvement with the LTTE. She was taken to the base but escaped. She believed that they intended to rape her. She and her brother then left for India but when their visas for that country expired she returned to Sri Lanka and hid in Colombo whilst her father made arrangements for them to go to Malaysia and from there to Australia.
[1] “IMR”.
At the RSA interview the applicant also claimed that she was abducted by men in a white van in Colombo before she had departed Sri Lanka for the final time; that claim had not previously been raised. She also claimed that men came to her hotel with a gun pointed at reception specifically to abduct her.
When the applicant sought review of the departmental decision from and Independent Merits Reviewer she attended an interview with him together with her representative. At that interview she raised a new ground for her fear of persecution, namely that she was very close to a woman known as D who had been killed by the CID on suspicion of involvement with the LTTE.
During the course of the hearing the IMR asked the applicant about her brother and she told that he had also had a negative decision made in respect of his claim. The applicant then raised her claim concerning D and was questioned about it by the IMR. The Reviewer then turned to the applicant’s claims about being abducted by the CID. At [T13] the applicant told that the CID had come around and asked neighbours about her brother. The IMR asked if she had ever been abducted in Colombo. The applicant said no, they only came and asked about her. The IMR then mentioned to the applicant that in her last interview she had said she was abducted in Colombo by men in a white van and she agreed. When the IMR pointed out this inconsistency the applicant said:
“That is because I am very confused because those things happened to my friend. After that I am very upset.”[2]
The IMR then asked the applicant about where her brother was. She indicated that he was in Darwin about 15 or 20 minutes away. The IMR states:
“I’m having a bit of a problem because when you first were interviewed, you never mentioned all these abductions, when you first arrived in Christmas Island.”[3]
The IMR asked more questions concerning her alleged abductions and then asked whether her brother was with her around about when these things occurred. She said he was not. She told that the abductors asked her father for a ransom which he paid. At [T16] to [T18] the following discussion takes place:
[2] [T14]
[3] Ibid.
“MR WITTON: Did he come to Colombo?
INTERPRETER: Yes, he came to Colombo.
MR WITTON: With your brother?
INTERPRETER: Yes.
MR WITTON: How awkward would it be to have the brother give evidence? Is that possible?
MS BRUCE: (indistinct)
MR WITTON: I mean if we could just stop for ---
MS BRUCE: For half an hour and ---
MR WITTON: For half an hour. I was wondering whether it would be useful to talk to your brother about this. Does he know about this?
INTERPRETER: Yes, he does.
MR WITTONL How do we do this, do you know?
MS BRUCE: I think we just have to go and speak with (indistinct)
MR WITTON: Have the brother brought here.
MS BRUCE: Yes.
MR WITTON: Would you do that while we – we should at least have it happening at this stage.
MS BRUCE: I can (indistinct)
MR WITTON: We could ask the guard here, can we?
MR .....: (indistinct) send it through to the guard tower. They will make some arrangements to escort him from there to here.
MR WITTON: Because we might as well take some more evidence which [sic] we’re here, if that’s all right.
MS BRUCE: Yes.
MR WITTON: So we might arrange for your brother to come, but I might also be talking to you while he’s coming if that’s all right. Do you know your brother’s number or ---
INTERPRETER: [spells name of brother]
MR WITTON: Sorry. I thought it was the boat number.
INTERPRETER: Boat number ---
MR WITTON: It could be G, could be J. I was thinking of something else.
INTERPRETER: She doesn’t know that number.
MR WITTON: His name is ---
INTERPRETER: [name of brother]
MR WITTON: Could you arrange – who do we talk to ---
MS BRUCE: I reckon we talk to (indistinct)
MR WITTON: All right. Do you want ---
MS BRUCE: I can walk down there, if you like.
MR WITTON: All right. If we could just stop for a second.
ADJOURNED
RESUMED
MR WITTON: It seems it’s not possible to talk to your brother. Is there anything else you want to tell me before I talk to you any more?”
At [T19] there is a short interruption in the proceedings:
“MS….: Sorry for interrupting ---
MR WITTON: That’s all right.
MS…..: --- but John would like to speak to Natalie.
MR WITTON: I see, on the mobile. We’ll just pause it.
ADJOURNED
RESUMED
MR WITTON: So we’re resuming after a phone call. Anything I need to know or ---
MS BRUCE: No. He has just been made aware that the brother (indistinct)
MR WITTON: And he’s happy with that.
MS BRUCE: He’s happy with that.”
The proceedings then continued for a short while until concluding in the following way:
“MR WITTON: The problem in your life, what was that?
INTERPRETER: Because I’ve heard that my friend was killed. My auntie called me and said that – she advised me to skip the country. Even my father said to go (indistinct)
MR WITTON: Sorry ---
INTERPRETER: We did apply to come here earlier. My father sent us from my country to go and live peacefully somewhere else, to a new country.
MR WITTON: Do you wish me to explore anything further?
MS BRUCE: No. The only thing I would say is that we are going to have some submissions.
MR WITTON: Okay.
MS BRUCE: (indistinct)
MR WITTON: I don’t have any further questions. You lawyer is going to make a submission, that is to give me further information. Of course you can talk to her if there’s anything further you want to say to me. Thank you.
INTERPRETER: Thank you.
MR WITTON: Thanks, interpreter.”[4]
[4] [T23]
After the hearing concluded, the IMR sent to the applicant a very detailed letter which commenced as follows:
“Further to the recent interview I held with you and your adviser, I am sending you, for your consideration and comment, some possible findings I might make from the evidence I have before me.
I am also sending you, for your consideration and comment, some independent country information reports on the current situation in Sri Lanka. This information may lead me to find that the situation in Sri Lanka has so improved that you could safely return there.
I may rely on this information in my recommendation as to whether you are considered to be a refugee. Subject to any comments you may make, if I rely on this information, I may conclude that you are not a refugee under the Refugee Convention nor a person to whom Australia owes protection obligations.”[5]
The applicant, through her agent, responded to the letter in short form:
[5] [CB 105-106]
“We have taken instruction from our client in relation to the inconsistencies that you have detailed.
Our client instructs as follows:
1. She did not mention D previous to the IMR Review as she did not have evidence in order to support her statement. She thought that she would not be believed unless she had evidence to support her claim in regards to the persecution that Ms R has faced as a result of her friendship with D. Evidence of D’s death by gunshot wound was only received following Ms R’s RSA Interview.
2. She was abducted twice and taken to the local airforce [sic] base. Our client instructs that she was confused at the IMR Interview given the stress she was experiencing at recounting her experiences.
3. She was abducted in a white van in Colombo and released after a ransom was paid by your [sic] father.
Our client instructs that she has experienced significant amounts of trauma in the past few years from her experiences in Sri Lanka and then the subsequent travel to Australia. Our client instructs that the stress associated with being interviewed both at RSA and at her subsequent IMR Interview contributed to what maybe perceived as inconsistencies in the accounting of her experiences. Our client instructs that she has been truthful when relaying her experiences but has been confused at times due to stress and fear of being returned home.
Ms R has instructed that she remains very fearful of returning to Sri Lanka and that it is not safe for her to do so. She instructs that she fears persecution at the hands of the Sri Lanka government and its supporters for reasons of race and imputed political opinion (support for the LTTE). It is clear from the evidence set out in our correspondence that, Ms R’s fears of future harm should she return to Sri Lanka should be accepted as well-founded and she should be granted refugee status.
On 26 March 2011 the IMR made his recommendation to the Minister that the applicant not be recognised as a person to whom Australia had protection obligations, saying at [70 CB 113]:
“70. The reviewer has carefully considered he totality of the evidence presented by the claimant since her arrival in Australia. The reviewer finds that there are such serious inconsistencies in her claims that the reviewer cannot accept her to be a credible witness. The reasons for this are as follows.
71. The reviewer notes that there had been no mention of her association with a person called D until the review interview despite the fact that it has now become a central aspect or her evidence. In the light of this, the reviewer finds that this claim has been fabricated in order to strengthen her claims. The reviewer is further strengthened in the finding that her relationship to a person called D is a fabrication because of her claim that she was already under suspicion about her relationship with D for some two years before D was killed and that she had been taken in for questioning because of this. However, she had never mentioned this in previous interviews or statements. The Reviewer finds her explanation that she had not mentioned this because her brother had not yet arrived on Christmas Island not to make sense and notes that she in fact failed to mention it at her RSA interview subsequent to her brother’s arrival on Christmas Island. The reviewer also finds her explanation, that she was awaiting “evidence”, to be unconvincing given that she had advanced other claims even though she did not have “evidence”. The reviewer accepts that the death certificate tendered may well be genuine but does not accept that the claimant had been friends with a Tamil sympathiser, D, who was killed in 2008.
The reviewer notes that she has at different times claimed to have been taken herself only once to the air force base, that she was taken there with a neighbour hood [sic] girl, and at on [sic] another occasion has claimed to have been taken there twice. The reviewer finds these inconsistencies demonstrate that she was fabricating these claims and had in the process confused herself and finds that she was never detained as claimed.”
There is only one ground of the Further Amended Application in respect of which the applicant seeks review of the IMR decision from this court. That is:
“1. The decision of the Second Respondent was made in breach of an essential pre-condition to its jurisdiction, or the exercise of its power, to recommend that the Applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees and/or it failed to observe the requirements of procedural fairness and/or it exceeded its jurisdiction and/or constructively failed to exercise jurisdiction and/or its decision was affected by an error of law or jurisdiction.
PARTICULARS
(d) It was unreasonable and/or a denial of procedural fairness not to have the Applicant’s brother called as a witness to give evidence, given his presence in the vicinity of the hearing and his capacity to corroborate the Applicant’s claims, and/or to seek to obtain any written statements provided to him by the First Respondent for the purpose of his asylum claims.
In his helpful written submissions Mr Gibson, who appears on behalf of the applicant, states:
“25.It was unreasonable and/or a denial of procedural fairness not to have the Applicant’s brother called as a witness to give evidence, given his presence in the vicinity of the hearing and his capacity to corroborate the Applicant’s claims, and/or to seek to obtain any written statements provided by him to the First Respondent for the purpose of his asylum claims.
26In view of the issue of the Applicant’s relationship to the suspected LTTE operative D and the inconsistencies and omissions regarding this and other claims which weighed heavily in the reviewer’s mind, the significance of the brother’s arrival on Christmas Island and his capacity to assist her case and her explanation for the late disclosure of the ‘D’ claim (see [58]-[60] CB 105) and Findings at [71]), and his understanding of her psychological state and its history (made relevant at [CB 112 [65] by the adviser’s letter), made the decision of the reviewer to call him of its own motion (a proprio motu) but with the express agreement and consent of the Applicant a crucial part of the review process.
27.Once it had begun (by analogy to NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1) the process of calling the brother could not in fairness to the Applicant be terminated on what appears to be simply a matter of administrative inconvenience. There was in a very real sense a failure to complete the review process.
28. It was clear from the Transcript that:
i) The Applicant’s brother who made his own claims for protection was being held at Asti detention centre nearby in Darwin (T 20-40)
ii)When the incidents happened in Colombo the brother was taken there afterwards by the applicant’s father (T16 (1-3)
iii)The IMR suggested he be called which the Applicant through her representative agreed with (T 17 (8-20)
iv)It appeared that the brother was aware the hearing was going on (T 17 (18)
v)It seemed that arrangements could be made to bring him to the hearing (T 17 (25-38)
vi)The IMR was keen to take the brother ‘s evidence and set the arrangements in train (T 17-18 ( 42-26)
29.Then what happens at T 18 is the bald statement “it is not possible to talk to your brother” and the IMR moves immediately on to asking if there is more she wants to tell him.
30.At T19 (45) – T20 (3 there is an indistinct and unclear reference which does not shed any light on the reason for the non-appearance of the brother.
31.In the circumstances as they played out in the hearing – with the reviewer of his own motion indicating the usefulness of hearing the brother’s evidence as a witness (who apparently possessed knowledge of a range of relevant matters in his sister’s case) and proposing to call him – not to complete the process by hearing from the brother (then or at a later time) is demonstrably a denial of procedural fairness and of the fair hearing rule and a failure to complete the review process. It was not simply a question of the witness being unavailable at that time (if that be the case) and that being the end of the matter.”
The applicant argues that what occurred in the instant case is analogous to what occurred in NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1[6] and that the principles expounded in that case should be applied in this. It will be recalled that in NAFF a member of the Refugee Review Tribunal, hearing a merits review application, said at the end of the hearing:
“Given that there are some inconsistencies with regard to the dates of the detentions and the number of detentions, I will have to write to you about those. So what I will do is to write to you in the next couple of days and you will have 21 days in which to respond to my questions and to put any more information that you wish to the Tribunal.”
This did not occur. The Tribunal member proceeded to make a decision in the matter and handed down her reasons for affirming the delegate’s decision. The Tribunal’s power to make the statement that it did and not to conclude the determination at the end of the hearing was accepted by all parties. The question before the High Court was whether the action of the Tribunal in not acting in accordance with its representation meant that the review had not been completed and thus the proceedings, so far as the applicant was concerned, were not procedurally fair.
[6] “NAFF”.
There were two judgments of the court, although the decision to uphold the appeal was the same; the first was of the majority McHugh, Gummow, Callinan and Heydon JJ; the second of Kirby J. The majority drew certain inferences from the events at the Tribunal hearing:
“It can also be inferred that [the Tribunal] had decided that a fair technique by which to take the matter forward was for the difficulties arising from the apparent inconsistencies to be explained to the appellant in written questions to be formulated by her, and to be calmly answered by the appellant in less stressful conditions.”[7]
Another was:
“[By her closing remarks] she was saying that procedural fairness required some further steps to be taken so that the matters indicated could be ironed out one way or the other. It is clear that the Tribunal member was in the best position to judge whether the review process was incomplete.”[8]
Of the failure to ask the questions the majority said:
“Her failure to give any indication otherwise suggested that her original impression that the review process was incomplete had not altered on reflection, and was soundly based. It would not be complete until the steps which she had thought could remedy its defects had been carried out. The failure to complete the review process was a failure to comply with the duty imposed by s 414(1) to conduct the review and the duty under s 425(1) to hear from the appellant.”[9]
The applicant particularly relied on what fell from the majority at [43]:
“The Tribunal member at one important stage had the impression that there might be a benefit for the appellant in the review as a whole in having a further opportunity to answer hew questions in writing on the subject of detention; she never explained why that impression was wrong or whether it had changed; it is thus a likely inference that the impression was sound. Hence the appellant’s deprivation by the Tribunal member of that opportunity is a breach of procedural fairness going to jurisdiction.”
[7] NAFF at [30].
[8] Ibid at [31].
[9] Ibid at [32].
Kirby J’s views are not inconsistent with those of the majority; at [70] his honour makes reference to the remarks of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs: Ex parte Lam (2003) 214 CLR 1:
“[I]t is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation.”
I cannot agree with the applicant that the factual circumstances in this case allow an analogy with those that pertained in NAFF. In that case the Tribunal had made it clear to the applicant that its consideration of his claims had not closed. Because he was expecting to receive some questions from the Tribunal, he could not be expected to make any further submissions to it unless they were received:
“He could not anticipate what material he would be asked to supply, nor could he anticipate how any particular material to be requested would relate to the potential lines of reasoning of the Tribunal member, and hence he could not anticipate what he might usefully say on the subject generally.”[10]
[10] Ibid at [34].
The High Court also made it clear that it was the Tribunal’s failure to tell the applicant that it did not propose to ask the questions it had foreshadowed that contributed to the unfairness; presumably if it had done so the applicant could have made further submissions at least on the points that he thought that the Tribunal had been confused by in his evidence. In the instant case no promises were made, no representations were given, all that occurred was that the Tribunal, thinking aloud, thought that it might be useful to have evidence from the brother. I would not go so far as to say, as the applicant has, that the Tribunal formed a view as to the usefulness of the brother’s evidence. I do not believe that anything that the Tribunal said or anything that occurred at the hearing could have amounted to a representation that the brother’s evidence was intended to be taken into account. I think that the respondent is right in saying that the process had been completed. There was an attempt made to have the brother brought but it did not succeed. At no time did the applicant or her representative ask for the hearing to be adjourned so that the brother could be brought or for a further hearing date to be scheduled at which the brother might be present; neither the applicant nor her advisers made any submissions to the Tribunal as to what the brother’s evidence might be; no statement was obtained from him and sent to the Tribunal. All of those things were possible given that the Tribunal offered the applicant an opportunity to make further submissions and then sent her a very detailed procedural fairness letter to which her advisers responded. This is not a question of the Tribunal deciding that hearing from the brother was a fair technique to take the matter forward and then not completing it. The IMR thought that the brother’s evidence might be useful but when he was unable to be brought to the hearing, it was made clear that the matter would proceed without him. It seems to me that in the same way the Tribunal in NAFF could have advised the applicant that no further questions were going to be asked and not fallen into jurisdictional error. The clear inference from this IMR hearing that the brother’s involvement was not going to be a continuing one avoided any suggestion of jurisdictional error on the part of the reviewer.
For these reasons the application must be dismissed. The applicant must pay the respondent’s costs which I assess in the sum of $4,500.00.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 13 April 2012
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